This post on use of all capitals in contracts—it’s from Legal Frontier, Andrew Mitton’s blog—reminded me of a question that I’ve asked myself occasionally. The Legal Frontier post is about how use of all capitals makes contract text harder to read. That wouldn’t come as a surprise to anyone who pays the slightest attention to typography, but it bears repeating, … Read More
A few months ago someone at a public company mentioned to me that her department was about to embark on a redraft of their templates. I was familiar with the subject matter, so I knew that the templates must be complex. I recently checked in with her to see how the process was going. In her reply, she mentioned in … Read More
If anyone is wondering why I’ve been devoting time to efforts standards, have a look at this post on DealBook by Steven Davidoff regarding a development in Blackstone Group’s proposed acquisition of Alliance Data Systems. For reasons I discuss in MSCD, in this article, and in last week’s blog post, it would be bizarre for a court to hold that … Read More
I suspect that the one usage that causes me most aggravation is best efforts. That’s because the way I see it is diametrically opposed to the way many practitioners see it. I think the problem is that people approach it as an issue to be resolved by case law, whereas I see it first of all as a matter of … Read More
Sidestepping a contentious contract issue with the notion of working it out in litigation is a standard strategy, but you don’t often find examples of it in the wild. That’s why I noted with interest oral argument before the Supreme Court on January 16 in Quanta v. LG, as case dealing with patent exhaustion. (Click here for the transcript.) I’m … Read More
One sure route to a stiff, starchy prose style is not to use contractions. They’re suitable in all but the most formal kinds of writing, and they help you achieve a more natural, conversational rhythm. For some reason that I’ve since repressed, I didn’t use contractions in MSCD. So for the second edition, I’m now adding them in wherever I … Read More
Have you thought to yourself, as you flipped through A Manual of Style for Contract Drafting, that I’d failed to address adequately, or at all, some issue that’s dear to your heart? Do you have a beef with any of my recommendations? Do you not like the binding? The cover? The font? If so, now’s the time to speak up, … Read More
I love it when I spot an issue and analyze it, and subsequently a case comes down that hinges on exactly that issue. You may recall that in this June 2007 post I discussed two subtle issues involving may. One issue involved limited discretion and the expectation of relevance. Here’s what the manuscript of MSCD2 has to say about this: … Read More
Here’s another fresh extract from the manuscript of MSCD2. It’s from the section “The Title,” and it addresses at greater length something I mention in MSCD 2.3: And don’t feel obligated to track the terminology of state statutes. For example, statutes in Nevada, New York, and other states use the term “plan of merger.” As a result, it’s commonplace for … Read More
I’ve snickered at the notion of contracts under seal, but I’ve never studied the topic. Here’s what I found out: In medieval England, a seal—consisting of wax attached to a writing and bearing an impression—served as a marker to identify the parties to an agreement. As literacy increased, signatures slowly replaced seals as identifying markers. And the value of seals … Read More
